Ideas are not Protectable – Victoria Espinel (Government Official) Gets it Wrong

Victoria Espinel was recently appointed as U.S. Intellectual Property Enforcement Coordinator. On February 23, 2010, she posted a blog entry on the website. Sadly, she perpetuates some lies about “intellectual property.” I only address the most egregious lies here, principally the lack of distinction between “ideas” and “intellectual property.” Victoria fails to recognize the distinction — and there is a fundamental, substantive distinction.

She paraphrases or quotes the President as saying that “it is important that our ideas are protected.” However, copyright law merely protects “original works of authorship fixed in any tangible medium of expression” pursuant to the copyright statute, 17 U.S.C.  § 102. That section, in circular 92, goes onto state that “Works of authorship include . . . categories” including: literary works; musical works; dramatic works; pantomimes and choreographic works; pictorial, graphic, and sculptural works; motion pictures; sound recordings; and architectural works. No protection for ideas there. In fact, there is a long line of cases and legal doctrine freeing ideas for public consumption. The focus of copyright is expression, not ideas.

Patent law likewise does not protect ideas. Patent law merely protects “any new and useful process, machine, manufacture, or composition of matter” as stated in 35 U.S.C. § 101.  Notice the similar lack of the word “idea” in this statute. Neither “ideas” nor “discoveries” are protected: merely “inventions” that satisfy all of the requirements of the patent office.

Victoria further states in her blog post that, “Intellectual property are [sic] the ideas behind inventions, the artistry that goes into books and music, and the logos of companies whose brands we have come to trust.” This statement brings up an entire can of worms. Principally, my trouble is with the use of the word “property” as if somehow “intangible assets” are the same as real property. They are not. I am going to save a discussion of the true origin and meaning of intellectual “property” for another time. In short, I firmly disagree that “ideas” are equivalent to “property” or “intellectual property.” As shown above, “ideas” are not “intellectual property.” The words “artistry” and “logos” in their abstract are not defensibly part of intellectual property.

She also states that “My job is to help protect the ideas and creativity of the American public.”  Funny, the laws don’t back her up on this point. However, she appropriately backtracks and states that the U.S. can remain a global leader by “appropriately protecting our intellectual property.” I can agree with that statement! The rest of her comments are more correct and defensible. Feedback is welcome.